MACAU SAR, CHINA Law and Practice Contributed by: João Nuno Riquito, Bruno Almeida and Daniel de Senna Fernandes, Riquito Advogados
5.2 Discovery and Third Parties It is possible to obtain discovery from third parties not named as a plaintiff/claimant or defendant. In princi- ple, as long as it is relevant to establishing the facts, any party who is aware of any facts, or is in posses- sion of any evidence, is bound to co-operate with the court upon request, by providing witness statements or producing documents. Witness statements are provided during the trial hear- ing. The witness list is submitted along with the initial pleading or modified after the court has issued the decision regarding the classification of proven facts and facts to be proven by considering the submis- sions of both parties (until 30 days before the hearing). The witnesses are identified by their names, profes- sions, addresses and other necessary circumstances. There are limitations as to the maximum number of witnesses allowed but the court does not exercise pri- or control over the witnesses’ knowledge of the facts or respective relevance. Witnesses called by the court must attend the hearing and may, when necessary, be compelled to do so by the court, without preju- dice to certain individuals’ right to refuse to testify or their prerogative to provide their statement in writing. The parties have the responsibility to ensure that any witnesses living outside the Macau SAR attend the hearing to provide their statements, unless the party requests the court to issue a collaboration request to the relevant foreign authorities to obtain a witness statement. Should, during the hearing, any party become aware of additional relevant witnesses, it may make a request to the court for admission, which is subject to its dis- cretion. The court may order, upon the request of either par- ty, a third party to produce documents. This request can be included in the initial submission(s) or later, together with the evidence submission, which is to be presented after the court has established the facts proved or to be proven. The party needs to identify the document and explain its relevance. The court will decide after hearing all parties.
5.3 Discovery in This Jurisdiction See 5.1 Discovery and Civil Cases and 5.2 Discovery and Third Parties . As a general rule, parties shall produce the relevant documents with their respective submissions, but, without prejudice to rules on mala fides, documents can be submitted at a later stage, although likely sub- ject to the payment of fines. 5.4 Alternatives to Discovery Mechanisms See 5.1 Discovery and Civil Cases and 5.2 Discovery and Third Parties . 5.5 Legal Privilege Lawyers and certain other professionals are subject to legal privilege. In particular, client-attorney privilege is well protected under the Macau SAR law and only in very limited and exceptional circumstances can the court allow testimony which breaches this privilege. The duty of secrecy may also be lifted by the Macau Lawyers Association upon a voluntary request by the lawyer involved, when it is justified for the purposes of defending the rights and legitimate interests of the lawyer or their clients. Any evidence obtained in breach of professional privi- lege is considered null and thus cannot be used in court. There is no distinction, as regards privilege, between external and in-house counsel, provided they are both lawyers registered with the Macau Lawyers Associa- tion. 5.6 Rules Disallowing Disclosure of a Document Documents and other materials may be refused to be disclosed when their disclosure: • may cause the violation of a persons’ moral or physical integrity; • may cause an intolerable violation of someone’s privacy, domicile, correspondence or other means of communication; • may cause a breach of legal privilege or secrecy; or • implies a general disclosure of business books, which is subject to certain restrictions.
645 CHAMBERS.COM
Powered by FlippingBook